BVA9506020 DOCKET NO. 90-52 140 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether there was clear and unmistakable error in a rating decision dated on March 11, 1970, with respect to the veteran's claim for entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD R. D. Turano, Counsel INTRODUCTION The veteran served on active duty from December 1951 to September 1955. In a rating decision dated on March 11, 1970, the Regional Office (RO) denied the veteran's claim for entitlement to service connection for a psychiatric disorder. A notice of disagreement was submitted on the veteran's behalf and a statement of the case was issued. A timely substantive appeal was not received. This matter came before the Board of Veterans Appeals (Board) from a February 1989 determination by the RO which found that new and material evidence had not been submitted sufficient to reopen the veteran's claim for entitlement to service connection for a psychiatric disorder. A notice of disagreement was received in July 1989. The statement of the case was issued in August 1989. A substantive appeal was received in November 1989. The case was remanded by the Board in May 1990 in part so as to afford the veteran notice of the laws and regulations pertaining to the issue of whether the March 11, 1970, decision by the RO was clearly and unmistakably erroneous. In February 1991, the Board again remanded this matter in order for the RO to formally adjudicate this matter. In a rating action dated in April 1991, the RO determined that there was no evidence of clear and unmistakable error in the March 11, 1970 decision. A supplemental statement of the case was issued in May 1991. In May 1992, the Board requested and received an opinion from an independent medical expert. In a decision dated in September 1992, the Board found that there was no clear and unmistakable error in the March 11, 1970, decision and that new and material evidence had not been submitted sufficient to reopen the veteran's claim for entitlement to service connection for a psychiatric disability. The veteran submitted a timely notice of appeal to the United States Court of Veterans Appeals (Court). In a decision promulgated on October 12, 1994, the Court affirmed that part of the Board decision pertaining to whether the veteran's claim could be reopened and summarily vacated and remanded that aspect of the September 1992 Board decision which found that clear and unmistakable error was not shown in the March 11, 1970, decision. The Court remanded this matter for the Board for the issuance of a new decision supported by an adequate statement of reasons or bases for the decision reached. [citation redacted]. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in substance, that the March 11, 1970, decision by the RO was clearly and unmistakably erroneous. It is asserted that the determination that a psychiatric disorder pre-existed the veteran's entrance upon service was in error as he was presumed to be in sound condition at that time. The veteran argues that the finding that a psychiatric disorder existed prior to service was based solely on a medical history in which he stated that he had always been the nervous type. He states that this statement is insufficient to constitute clear and unmistakable evidence to rebut the presumption of soundness. Moreover, it is argued that if this disability existed prior to his entrance into service, there is insufficient evidence to rebut the presumption that a pre- existing disability was aggravated by service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the March 11, 1970, decision by the RO was not clearly and unmistakably erroneous. FINDINGS OF FACT 1. The RO March 11, 1970, found that the veteran's psychiatric disorder was not incurred in service and was not found to have been aggravated by service. It was noted that the evidence reviewed indicated that a nervous disorder pre-existed the veteran's entrance into service. 2. These determinations were consistent with the evidence of record. The possible failure of the RO to adequately set forth the evidence deemed to rebut the presumption of soundness is not material as it would not have manifestly changed the outcome of that determination. The possible failure of the RO to adequately set forth the evidence deemed to establish that there was no increase in the severity of the disorder during service is not material as it would not have manifestly changed the outcome of that determination. 3. The March 11, 1970, decision by the RO which denied the veteran's claim for entitlement to service connection for a psychiatric disorder was supported by the evidence then of record and in accordance with the legal criteria in effect at that time. CONCLUSION OF LAW The March 11, 1970, decision by the RO which denied entitlement to service connection for a psychiatric disorder was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 1110, 1111, 1153, (West 1991); 38 C.F.R. §§ 3.105, 3.306 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Court, in a decision dated in October 1994, vacated and remanded part of the September 1992 Board decision as it pertained to the issue of whether there was clear and unmistakable error in the March 11, 1970, RO decision. Given the nature of this claim on appeal, further evidentiary development is not in order. A review of this matter on appeal relates to the evidence of record at the time of the RO decision and whether the legal criterion in effect at that time was properly applied. While an opinion from an independent medical expert was obtained in this case in May 1992, it may not be considered as only evidence of record in March 1970 may be reviewed. The veteran and his representative argue that the March 11, 1970, decision by the RO was clearly and unmistakably erroneous in that it did not consider the presumption at entry into service or the presumption of aggravation. Further, it is argued that if this disability existed prior to his entrance into service, there is insufficient evidence to rebut the presumption that a pre- existing disability was aggravated by service. The pertinent regulation provides that where the evidence establishes clear and unmistakable error, a prior decision must be reversed or amended. 38 C.F.R. § 3.105(a) (1994). The Court has prescribed a three-prong test to determine whether clear and unmistakable error exists in a prior determination: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied" (i.e., more than a simple disagreement as to how the facts were weighed or evaluated), (2) the error must be "undebatable" and the sort of error "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a finding of clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision. Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc). The Court has further held that clear and unmistakable error is "the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." Fugo v. Brown, 6 Vet.App. 40,44 (1993). Errors that would not have changed the outcome are harmless. Russell, 3 Vet.App. at 313. A review of the March 11, 1970, decision indicates that the veteran's service medical records were reviewed. It was noted that the records showed the veteran was treated during service for anxiety reaction which was determined to have existed prior to service. Further this March 11, 1970, document indicates another diagnosis given was inadequate personality, found not to have been incurred in the line of duty. The RO noted that the veteran had been diagnosed with schizophrenic reaction while hospitalized in 1962 and later by the Department of Veterans Affairs (VA). It was concluded at that time that there was no evidence to indicate the veteran's nervous disability was incurred in or aggravated by his military service. A review of the evidence of record at the time of the March 11, 1970, decision includes an entrance examination report dated in December 1951. The examination report, however, indicates that a psychiatric evaluation was not performed. Additional service records reflect that the veteran was hospitalized beginning in February 1952 due to depression and tension of two weeks' duration. The veteran reported that his turmoil began after he had been rejected for the Air Force cadet training program. He specifically reported that he had always been a nervous person and has, for unknown reasons, felt insecure. The diagnosis was anxiety reaction, chronic, mild, recovered, manifested by depression and anxiety. It was noted that this disorder existed prior to service. This finding was set forth by the veteran's treating physician following approximately three weeks of hospitalization which occurred approximately two months after the veteran's entrance into service. In July 1953 the veteran was examined for the purpose of being an aviation cadet and was found to be psychiatrically normal. He reported on his report of medical history at that time that he never had any nervous trouble of any kind and had not been treated by a clinic or physician in the last five years. In January 1954, the veteran was examined for purposes of entering a cadet (Pre Flight-Pilot) training program wherein it was reported he had an inadequate personality. He was found to be unqualified for flight training. It was noted that he had concealed important information regarding his medical history and was further evaluated in March 1954. The diagnosis set forth at this time was chronic, moderate, inadequate personality manifested by poor judgment, a disregard for moral-social codes, failure to consider possible consequence of his acts despite adequate physical and mental capacity and freedom from anxiety. The Chief of the psychiatry clinic, at this time, noted that this disorder existed prior to the veteran's entrance into service. This assessment and findings followed psychological and psychiatric testing, as well as a review of the veteran's medical history as set forth in his military records. Further, the RO reviewed post service medical records which included a report of hospitalization at Strong Memorial Hospital beginning in September 1962, approximately seven years after the veteran's service discharge. The veteran was given a diagnosis of schizophrenic reaction, paranoid type. Thereafter, the veteran was hospitalized at a VA Medical Center beginning in October 1969, which confirmed this diagnosis. The legal criteria in effect at the time of the March 1970 decision, essentially unchanged from that in effect at this time, provide that every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated thereby. 38 U.S.C.A. § 1111 (formerly § 311) (West 1991); 38 C.F.R. § 3.304 (1994). A pre-existing injury or disease will be considered to have been aggravated during active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (formerly § 353) (West 1991); 38 C.F.R. § 3.306(a) (1994). Further, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Significantly, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. 3.306(b) (1994). If no such increase is demonstrated, the presumption of aggravation is not for application. The determinations reached by the RO in the March 11, 1970 decision were based on a review of the above mentioned evidence of record. It was essentially concluded based on this evidence, that any nervous condition the veteran may have had existed prior to service. While it is clear that no such defect was noted on the veteran's entrance examination, as psychiatric evaluation was apparently not performed, it is equally clear that the medical professionals that treated and subsequently evaluated the veteran during service reached the conclusion that such condition existed prior to service. During a period of hospitalization of the veteran for approximately three weeks beginning in February 1952, it was first determined that a chronic anxiety reaction existed prior to service. These findings set forth by several physicians during the course of the veteran's extensive hospitalization and subsequent to psychiatric evaluation are highly probative as to the onset of the veteran's psychiatric disorder. The fact that these trained medical personnel determined that the onset of a psychiatric disability was prior to the veteran's service fully supports the conclusion reached by the RO with regard to this matter in the March 11, 1970 decision. The evidence of record at the time of the March 11, 1970 RO decision was insufficient to refute such a finding. Although the 1970 decision did not specifically note the evidence found to rebut the presumption of soundness in this case or specifically refer to the presumption of soundness, such action would not have manifestly changed the outcome of this matter with respect to the finding that the veteran's nervous condition clearly and unmistakably pre-existed his entry into service. As noted, the evidence supporting such a conclusion, as contained in the medical records, is highly probative of the issue considered. This high standard, as set forth by the Court in Russell, seeks to separate mere error from that which is undebatable and the kind of error that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo The Board is cognizant of the fact that mere disagreement with the manner in which the evidence is weighed or evaluated is not sufficient to constitute clear and unmistakable error. Moreover, it is argued that if pre-existing, the veteran's psychiatric disorder should have been found to have been aggravated by service and that the RO was clearly and unmistakably erroneous in not rebutting the presumption of aggravation in effect at that time. Significantly, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. The RO decision dated on March 11, 1970, specifies that a nervous disability was not aggravated by service and in so doing, has cited evidence found during service and subsequent to service discharge upon which to base such a conclusion. The service medical records relied upon do not demonstrate that this pre-service disability increased in severity during service. The RO noted that the veteran was first diagnosed with schizophrenic reaction, paranoid type, in 1962, approximately seven years after service. As such, given the fact that the RO justifiably found no increase in severity of the veteran's psychiatric disorder during service, the presumption of aggravation was not for application. Consequently, the Board finds that the March 11, 1970, decision by the RO which denied the veteran's claim for entitlement to service connection for a psychiatric disorder was supported by the evidence then of record and in accordance with the legal criteria in effect at that time. 38 U.S.C.A. §§ 1110, 1111, 1153, (West 1991); 38 C.F.R. §§ 3.105, 3.306 (1994). As noted, the possible failure of the RO to adequately set forth the evidence deemed to rebut the presumption of soundness or the evidence establishing that there was no increase in severity of the disorder in service and that the presumption of aggravation was inapplicable, is immaterial as it would not have manifestly changed the outcome of the 1970 determination. ORDER The appeal is denied. E. M. KRENZER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.